Dresser-Rand Group, Inc. and Dresser-Rand Holdings Spain, S.L.U. v. Centauro Captial S.L.U. and Joseba Grajales , 448 S.W.3d 577 ( 2014 )

Affirmed and Opinion filed September 25, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00444-CV
DRESSER-RAND GROUP, INC. AND DRESSER-RAND HOLDINGS
SPAIN, S.L.U., Appellants
V.
CENTAURO CAPITAL, S.L.U. AND JOSEBA GRAJALES, Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2013-14414
OPINION
This is an appeal by the plaintiffs from the trial court’s order granting the
special appearances of a Spanish citizen and a Spanish company. The main issue is
whether the trial court erred in concluding that it could not exercise personal
jurisdiction over these defendants based upon specific jurisdiction. Concluding
that the trial court did not err, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff/appellant Dresser-Rand Group, Inc. (hereinafter “Dresser-Rand”) is
a Delaware corporation with a principal office in Houston, Texas.
Plaintiff/appellant Dresser-Rand Holdings Spain, S.L.U. (hereinafter “Dresser-
Rand Spain”) is a Spanish company that is a wholly owned subsidiary of Dresser-
Rand. Dresser-Rand and Dresser-Rand Spain (hereinafter collectively the
“Dresser-Rand Parties”) filed suit in the trial court below against
defendants/appellees Centauro Capital, S.L.U. and Joseba Grajales (hereinafter
collectively the “Centauro Parties”). The trial court granted the Centauro Parties’
special appearances and dismissed the Dresser-Rand Parties’ claims for lack of
personal jurisdiction. The trial court issued findings of fact and conclusions of
law. On appeal, the Dresser-Rand Parties have challenged some of the trial court’s
findings of fact, but not the ones recited in the following subsection. See Eller
Media Co. v. City of Houston, 101 S.W.3d 668, 673–74, 684 (Tex. App.—Houston
[1st Dist.] 2003, pet. denied) (stating that the trial court’s findings of fact are
binding upon the appellate court unless challenged on appeal); Linton v. Airbus
Industrie, 934 S.W.2d 754, 757 (Tex. App.—Houston [14th Dist.] 1996, writ
denied) (same as Eller Media Co.).
Unchallenged Findings of Fact
Centauro Capital is a holding company organized under the laws of Spain.
All of Centauro’s business is conducted from its offices in Vitoria-Gasteiz, Spain.
Centauro Capital has no place of business, office, real estate, or facility of any kind
in Texas. Nor does Centauro Capital have employees, servants, or agents in Texas.
The company does not maintain an internet website or otherwise advertise in
Texas. It has never paid taxes or owned any bank accounts in Texas. Nor has
Centauro Capital ever filed a lawsuit in Texas, and before the case under review, it
2
had never been sued in Texas. Centauro Capital does not recruit Texas residents
for employment in Texas or outside of Texas.
Joseba Grajales, a citizen of Spain, is the sole director and shareholder of
Centauro Capital. Grajales does not now own, nor at any time has he owned, any
real estate, property, office, or business in Texas. In his individual capacity,
Grajales has never negotiated any contracts with Texas residents or recruited Texas
residents for employment. He has never had, and does not now have, any
employees, servants, or agents in Texas; he has never paid taxes or owned any
bank accounts in Texas. He has never filed a lawsuit in Texas, and until the case
under review, Grajales had never been sued in Texas.
Before the 2011 share-purchase transaction involving the Dresser-Rand
Parties, Centauro Capital owned approximately sixty-four percent of the shares of
Grupo Guascor, S.L., a Spanish company (hereinafter “Grupo Guascor”). Before
that transaction, Grajales was the chairman of the board and president of Grupo
Guascor. Eleven Spanish investment companies held the remaining approximately
thirty-six percent of Grupo Guascor’s shares. Grupo Guascor was headquartered in
Vitoria-Gasteiz, Spain. When Grajales served as an officer and director of Grupo
Guascor, that company did not (1) have any customers in Texas, (2) own any real
estate, property, office, or business in Texas, (3) engage in any contracts with
Texas residents, (4) recruit Texas residents for employment, (5) have any
employees, servants, or agents in Texas, (6) pay taxes in Texas, (7) own any bank
accounts in Texas, or (8) file or defend any lawsuit in Texas.
Dresser-Rand approached the Centauro Parties to express its interest in
purchasing Grupo Guascor. Dresser-Rand representatives traveled to Spain to
express the company’s interest to the Centauro Parties and then invited them to
Texas for two later meetings if there was interest in a purchase and sale
3
transaction. In April and July of 2010, Grajales traveled to Houston to meet with
representatives of Dresser-Rand regarding the potential purchase of Grupo
Guascor. All other negotiations, due diligence, conversations, and communications
took place while Grajales was either in Spain or France.
The following year, on March 3, 2011, Centauro Capital, the eleven other
Grupo Guascor shareholders, Dresser-Rand, and Grupo Guascor entered into a
Share Purchase Agreement (hereinafter the “Agreement”). The in-depth due
diligence for the Agreement, conducted in Spain and other European locations
over a two-week period, and much of the negotiations, including the final
negotiations and the execution of the Agreement, occurred in Spain and France.
The Agreement provided for a stock and cash transaction in which Dresser-Rand
agreed to pay Centauro Capital and the other eleven Grupo Guascor shareholders
(hereinafter collectively the “Sellers”) €204,868,000 in cash and €170,625,000 in
Dresser-Rand shares to acquire all shares of Grupo Guascor.
The Agreement required Dresser-Rand to transmit these payments and
shares to the Sellers’ accounts, each of which was located in Spain. Centauro
Capital’s Dresser-Rand shares are held by Merrill Lynch. Centauro Capital
communicates exclusively with personnel located in Merrill Lynch’s Madrid
offices regarding Centauro Capital’s Dresser-Rand shares. Centauro Capital has
never held or traded the Dresser-Rand shares or any other property through a
United States bank or other entity. The Agreement provided that the Sellers would
deposit €30,000,000 of the cash consideration to be held in escrow by Banco
Bilbao Vizcaya Argentaria, S.A. “or another Spanish institution” for use as a
source of money to cover up to €30,000,000 in potential post-closing liabilities
from the Sellers to the buyer. The escrow amount was deposited with BNP Paribas
Securities Services Surcursal en Espana, located in Madrid, Spain. The closing of
4
the transaction, at which the Sellers transferred their shares of Grupo Guascor to
Dresser-Rand, occurred solely in Spain and in accordance with Spanish law.
In accordance with the Agreement, the Dresser-Rand board of directors
appointed Grajales to serve as an Advisory Director to Dresser-Rand. As an
Advisory Director, Grajales had the right to attend Dresser-Rand board meetings,
but he did not have a vote. Grajales attended Dresser-Rand’s Board of Directors
and General Shareholder Meetings in May 2011 and May 2012, in Houston.
Post-Closing Adjustment
The closing of the transaction occurred on May 4, 2011. Before the closing,
Dresser-Rand entered into an assignment agreement with its subsidiary Dresser-
Rand Spain. Section 2.6 of the Agreement sets forth procedures and formulas for
calculating and effectuating a post-closing adjustment to the consideration paid by
Dresser-Rand for the Grupo Guascor shares (hereinafter the “Adjustment”).
Section 2.6(h) provides that under certain circumstances, Grajales, acting as the
Seller Representative, “will cause to be paid to [Dresser-Rand]” an amount in cash
determined pursuant to section 2.6 as an adjustment to the consideration to be paid
by Dresser-Rand.1 Likewise, section 2.6(h) provides that under other specified
circumstances Dresser-Rand will pay to the Sellers an amount in cash determined
pursuant to section 2.6 as an adjustment to this consideration. In section 2.6(j), the
parties state that “[t]he purpose of this Section 2.6 is to determine the final
1
By their execution of the Agreement, each of the Sellers designated and appointed
Grajales as its agent and attorney-in-fact with full power and authority to act for and on its behalf
to give and receive notices and communications, to authorize and agree to any adjustments
pursuant to section 2.6 and other applicable provisions, to agree to, negotiate, enter into
settlements and compromises of, and comply with judgments of courts or other governmental
authorities and awards of arbitrators, with respect to, any claims by any of the Dresser-Rand
Parties against any of the Sellers or by any of the Sellers against any of the Dresser-Rand Parties,
or any other dispute between any of the Dresser-Rand Parties and any of the Sellers.
5
Purchase Price to be paid by [Dresser-Rand] under this Agreement” and that “[a]ny
payment made pursuant to this Section 2.6 will be treated by the parties for all
purposes as an adjustment to the Closing Consideration.” Section 2.6 prescribes
procedures for first determining whether there is a dispute between Dresser-Rand
and the Sellers as to the calculation of the amount of the Adjustment. If there is
such a dispute, section 2.6 prescribes three procedures for resolving the dispute. If
these procedures do not result in the resolution of the dispute, then section 2.6(f)
provides that the parties will submit the dispute to an expert to be appointed by
“the President of the Commercial Court of Paris deciding in summary
proceedings.” The parties agree that this expert shall act under the terms of Article
1592 of the French Civil Code. Applying Spanish Generally Accepted Accounting
Principles, this expert shall issue a decision only as to the disputed items needed to
calculate the amount of the Adjustment. The decision of this expert is final and
binding on the parties for purposes of the section 2.6(h).
Arbitration Provision
The parties agreed that the Agreement shall be governed by, and construed
in accordance with the laws of France, without regard to conflict-of-laws
principles, except to the extent the corporate law of Delaware or Spain mandatorily
applies. In the Agreement the parties provided for arbitration of disputes arising
out of or in relation to the Agreement that cannot be amicably resolved by
reasonable efforts under informal dispute resolution procedures agreed to by the
parties. Any such arbitration must take place in Paris, France, under the Rules of
Arbitration of the International Chamber of Commerce (hereinafter “ICC”).
Appointment of Independent Expert
A dispute arose between the Dresser-Rand Parties and the Sellers as to the
calculation of the amount of the Adjustment under section 2.6. In July 2012,
6
Dresser-Rand Spain applied to the President of the Commercial Court of Paris for
appointment of an independent expert to resolve this dispute and in October 2012,
one was appointed (hereinafter the “Independent Expert”). When the trial court
issued its findings of fact and conclusions of law, the proceeding before the
Independent Expert was ongoing and had not been concluded. To date, no party
has notified this court that this proceeding has concluded.
Arbitration Proceeding
Centauro Capital initiated an arbitration proceeding in Paris, France against
the Dresser-Rand Parties under the Agreement’s arbitration provision. When the
trial court issued its findings of fact and conclusions of law, this arbitration
proceeding was ongoing and had not been concluded. To date, no party has
notified this court that this arbitration proceeding is completed.
Suit for Injunctive Relief in Texas Court
The Dresser-Rand Parties filed suit in the trial court against the Centauro
Parties, seeking injunctive relief barring the Centauro Parties from selling Dresser-
Rand stock totaling a value of €25,068,236.14, or if Centauro or Grajales already
has sold or desires to sell such stock in the future, requiring the Centauro Parties to
place the proceeds of any such sale into escrow until final decisions are rendered in
the pending arbitration proceeding and the proceeding before the Independent
Expert.
The trial court issued a temporary restraining order. The Centauro Parties
then filed special appearances. The trial court dissolved its temporary restraining
order and then granted the Centauro Parties’ special appearances, dismissing the
Dresser-Rand Parties’ claims against them for lack of personal jurisdiction. The
Dresser-Rand Parties now challenge this ruling.
7
II. STANDARD OF REVIEW
Whether the Centauro Parties are subject to personal jurisdiction in Texas is
a question of law subject to de novo review. See BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Parties may challenge the legal and
factual sufficiency of the trial court’s findings of fact, and the Dresser-Rand Parties
have challenged the legal and factual sufficiency of the evidence supporting some
of the trial court’s fact findings.
III. ISSUES AND ANALYSIS
In eight appellate issues, the Dresser-Rand Parties challenge the trial court’s
conclusion that it could not exercise personal jurisdiction over the Centauro Parties
based upon specific jurisdiction and that the exercise of personal jurisdiction over
the Centauro Parties would not comport with traditional notions of fair play and
substantial justice. The Dresser-Rand Parties further assert that the Centauro
Parties come within the reach of the Texas long-arm statute and that the evidence
is legally and factually insufficient to support some of the trial court’s fact
findings.
Legal Standards Regarding the Exercise of Personal Jurisdiction
The Texas long-arm statute governs a Texas court’s exercise of jurisdiction
over nonresident defendants. Tex. Civ. Prac. & Rem. Code Ann. §§17.041B.045
(West 2014). It allows a court to exercise personal jurisdiction as far as the federal
constitutional requirements of due process will permit. See BMC Software, 83
S.W.3d at 795. The plaintiff bears the initial burden of pleading allegations
sufficient to confer jurisdiction under the Texas long-arm statute. See Moncrief Oil
Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013). The long-arm
statute allows the exercise of personal jurisdiction over a nonresident defendant
8
who “contracts by mail or otherwise with a Texas resident and either party is to
perform the contract in whole or in part in this state.” Tex. Civ. Prac. & Rem.
Code § 17.042(1) (West 2014). The Dresser-Rand Parties satisfied their initial
burden by alleging that the Centauro Parties were doing business in Texas within
the meaning of section 17.042(1) of the Texas Civil Practice and Remedies Code.
See id.; Moncrief Oil Int’l, Inc., 414 S.W.3d at 149. Because the Dresser-Rand
Parties met this initial burden, the burden shifted to the Centauro Parties to negate
all potential bases for personal jurisdiction alleged by the Dresser-Rand Parties.2
See Moncrief Oil Int’l, Inc., 414 S.W.3d at 149.
Personal jurisdiction over a nonresident defendant is constitutional when two
conditions are met: (1) the defendant has established minimum contacts with the
forum state and (2) the exercise of personal jurisdiction comports with traditional
notions of fair play and substantial justice. See BMC Software, 83 S.W.3d at 795.
For a defendant to have sufficient contacts with the forum, it is essential that there
be some act by which the defendant “purposefully avails” itself of the privilege of
conducting activities in the forum state, thus invoking the benefits and protections
of its laws. Michiana Easy Livin= Country, Inc. v. Holten, 168 S.W.3d 777, 784
(Tex. 2005). Although not determinative, foreseeability is an important
consideration in deciding whether the nonresident defendant purposefully has
established minimum contacts with Texas. BMC Software, 83 S.W.3d at 795. The
concept of foreseeability is implicit in the requirement that there be a substantial
connection between the defendants and Texas arising from their conduct
purposefully directed toward Texas. See Guardian Royal Exch. Assur., Ltd. v.
2
The Dresser-Rand Parties do not argue on appeal that the trial court could exercise
personal jurisdiction over the Centauro Parties based upon general jurisdiction. In any event, the
evidence before the trial court and unchallenged findings of fact show that the trial court could
not exercise personal jurisdiction over the Centauro Parties based upon general jurisdiction. See
Daimler AG v. Bauman, —U.S.—,—, 134 S. Ct. 746, 760–62, 187 L. Ed. 2d 624 (2014).
9
English China Clays, P.L.C., 815 S.W.2d 223, 227 (Tex. 1991). A defendant
should not be subject to a Texas court’s jurisdiction based upon random, fortuitous,
or attenuated contacts. BMC Software, 83 S.W.3d at 795.
Specific jurisdiction exists when the claims in question arise from or relate
to the defendant’s purposeful contacts with Texas. Am. Type Culture Collection
Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). In conducting a specific-
jurisdiction analysis, we focus on the relationship among the defendants, Texas,
and the litigation. See Guardian Royal, 815 S.W.2d at 228. For a nonresident
defendant’s contacts with Texas to support an exercise of specific jurisdiction,
there must be a substantial connection between the defendant’s purposeful contacts
with Texas and the operative facts of the litigation. See Moki Mac River
Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007).
Specific-Jurisdiction Analysis
In conducting a personal-jurisdiction analysis, we review the claims in
question and the evidence regarding the jurisdictional facts, but we do not
adjudicate the merits of the claims. See Lisitsa v. Flit, 419 S.W.3d 672, 682 (Tex.
App.—Houston [14th Dist.] 2013, pet. filed); Weldon-Francke v. Fisher, 237
S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Ultimate
liability in tort is not a jurisdictional fact, and the merits of the Dresser-Rand
Parties’ claims are not at issue in determining whether the trial court erred in
dismissing these claims for lack of personal jurisdiction. 3 See Lisitsa, 419 S.W.3d
at 682; Weldon-Francke, 237 S.W.3d at 792.
3
Therefore, the trial court’s conclusion of law that the Dresser-Rand Parties did not plead
a cognizable claim under Texas law does not provide a valid basis for concluding that the trial
court could not exercise personal jurisdiction over the Centauro Parties based on specific
jurisdiction or that the Dresser-Rand Parties’ claims should be dismissed for lack of personal
jurisdiction. See Lisitsa, 419 S.W.3d at 682; Weldon-Francke, 237 S.W.3d at 792.
10
In their live petition in the trial court, the Dresser-Rand Parties made the
following allegations:
• The sale of the Grupo Guascor stock under the Agreement closed on
May 4, 2011.
• The Dresser-Rand Parties performed under the Agreement and paid the
Closing Consideration to each of the Sellers in proportion to its
respective share of Grupo Guascor’s capital. As the largest shareholder,
Centauro Capital received consideration that included 3,245,737 shares
of Dresser-Rand stock.
• The Dresser-Rand Parties and the Sellers are currently in a dispute
regarding the amount of the Adjustment. The Dresser-Rand Parties
claim that, as a result of the Adjustment, they are entitled to receive a
payment of approximately €36 million.
• Pursuant to section 2.6(f) of the Agreement, Dresser-Rand Spain
initiated a proceeding before the Independent Expert in Paris, France.
The Sellers initiated an arbitration proceeding against the Dresser-Rand
Parties before the International Chamber of Commerce in Paris, France.
• Until these proceedings are concluded and the parties’ claims resolved,
the final purchase price of the Grupo Guascor stock remains
undetermined.
• At closing, €30 million of the Closing Consideration was placed in
escrow to serve as partial security for the benefit of the Dresser-Rand
Parties in respect of indemnification claims and the Adjustment. In
addition to the dispute regarding the Adjustment, the Dresser-Rand
Parties also have filed numerous indemnification claims against the
Sellers under section 9.1 of the Agreement. The total amount of these
indemnification claims is expected to be at least €30 million, thus
exhausting the escrow amount and not leaving any escrow amount as
security for the Adjustment.
• The Dresser-Rand Parties are extremely concerned that, if Grajales or
Centauro Capital is permitted to exercise complete control over the
Closing Consideration that already has been paid, Grajales will not make
a sufficient portion of that disputed consideration available to satisfy his
and the Sellers’ obligations to the Dresser-Rand Parties. If Centauro
Capital, the holder of approximately 3.2 million of the approximately 5
million shares of Dresser-Rand stock paid to the Sellers, is able to sell or
11
otherwise control or encumber its Dresser-Rand stock or the cash
proceeds thereof, the Centauro Parties, by being able to spend, conceal,
or otherwise dispose of and dissipate the Closing Consideration in their
possession, will be able to scuttle the process set forth in the Agreement
and render the ongoing proceedings in Paris (hereinafter the “Paris
Proceedings”) “fundamentally meaningless.”
• The only way to maintain the integrity of the Paris Proceedings is to
assure that the Centauro Parties do not dispose of the Closing
Consideration that is the subject of those proceedings. Therefore, the
Dresser-Rand Parties seek injunctive relief barring the Centauro Parties
from selling Dresser-Rand stock totaling a value of €25,068,236.14, or if
Centauro or Grajales already has sold or desires to sell such stock in the
future, requiring the Centauro Parties to place the proceeds of any such
sale into escrow until final decisions are rendered in the Paris
Proceedings.
• Under a claim entitled “Preservation of Subject Matter of Pending
Disputes,” the Dresser-Rand Parties allege that the Centauro Parties are
about to perform an act that directly affects the subject matter of the
Paris Proceedings. The injunctive relief sought by the Dresser-Rand
Parties allegedly is required to protect the rights granted to the Dresser-
Rand Parties under the Agreement and to preserve the status quo of the
subject matter of the Paris Proceedings until final decisions are made in
those proceedings and the parties’ disputes resolved in a meaningful
way.
• Under the heading “Application for Temporary Injunction,” the Dresser-
Rand Parties assert they are entitled to a temporary injunction granting
the relief they seek because the Dresser-Rand Parties allegedly have a
probable right to the relief they seek in the Paris Proceedings and
because, absent such injunctive relief, they will suffer probable,
imminent, and irreparable injury. Centauro Capital allegedly has taken
steps to dissipate all of the Dresser-Rand stock it received as part of its
Closing Consideration under the Agreement. The Dresser-Rand Parties
assert, upon information and belief, that the Centauro Parties will
complete this process well before a final determination is made in either
of the Paris Proceedings.
• Under the heading “Permanent Injunction,” the Dresser-Rand Parties
seek the same relief by means of a “permanent injunction” that they wish
to be in effect until a final decision is rendered in both of the Paris
12
Proceedings.
We analyze minimum contacts for specific jurisdiction on a claim-by-claim
basis, unless all claims are based on the same alleged forum contacts. See
Moncrief Oil Int’l, Inc., 414 S.W.3d at 151. In the case under review, the Dresser-
Rand Parties’ three claims are all based on the same purported contacts with Texas;
therefore, we do not analyze minimum contacts for specific jurisdiction on a claim-
by-claim basis. See Lisitsa v. Flit, 419 S.W.3d 672, 679 (Tex. App.—Houston
[14th Dist.] 2013, pet. filed).
Although the Dresser-Rand Parties assert three claims, they seek the same
injunctive relief under each and they allegedly seek to preserve the status quo
pending resolution of both of the Paris Proceedings. Thus, the substance of each of
the Dresser-Rand Parties’ three claims is an application for a temporary injunction
preserving the status quo pending resolution of the Paris Proceedings.4
For a Texas court to be able to exercise personal jurisdiction over a
nonresident based on specific jurisdiction, there must be a substantial connection
between the nonresident’s purposeful contacts with Texas and the operative facts
of the litigation. See Moki Mac River Expeditions, 221 S.W.3d at 585.
Significantly, none of the claims that are pending in either of the Paris Proceedings
have ever been pending in the case under review, nor has the trial court in this case
compelled any party to proceed with the Paris Proceedings (or either of them).
Thus, the operative facts of the claims pending in either of the Paris Proceedings
are not the operative facts of the Texas litigation. See id. Instead, the operative
4
The Centauro Parties assert that, under section 2.6 of the Agreement, the Adjustment is
effected only by means of a payment by the Sellers or by Dresser-Rand and that the requested
relief would amount to a pre-judgment attachment to which the Dresser-Rand Parties are not
entitled. We do not adjudicate the merits of the Dresser-Rand Parties’ claims, we only
characterize the substance of these claims for the purpose of our personal-jurisdiction analysis.
13
facts of this litigation concern the steps allegedly taken by the Centauro Parties in
the past to begin to “dissipate” all of the Dresser-Rand stock Centauro received as
part of its Closing Consideration under the Agreement, as well as steps that may be
taken in the future by the Centauro Parties to complete this alleged dissipation.5
See id. (where the plaintiffs sued a river-rafting outfitter for intentional and
negligent misrepresentations and wrongful death after their minor son’s fatal fall
while on a hike under the defendant’s supervision, the operative facts of the suit
were those concerning the guides’ conduct of the expedition and whether they
exercised reasonable care).
The evidence before the trial court for its special-appearance rulings does
not show that any of these alleged steps or anticipated steps by either of the
Centauro Parties occurred in Texas or would occur in Texas. Rather, the evidence
shows that Grajales is a Spanish citizen living in Spain and that Centauro Capital is
a Spanish company operating in Spain. The evidence also shows that Centauro
Capital’s Dresser-Rand shares are held by Merrill Lynch and that Centauro
Capital, when communicating with Merrill Lynch regarding its Dresser-Rand
shares, deals exclusively with personnel located in Merrill Lynch’s Madrid offices
On appeal, the Dresser-Rand Parties have not challenged the trial court’s finding
that Centauro Capital has never held or traded the Dresser-Rand shares or any
other property through a United States bank or other entity. The special-appearance
evidence shows that there is not a substantial connection between either of the
Centauro Parties’ alleged purposeful contacts with Texas and the operative facts of
this litigation.6 See id.; Transportes de Zima Real S.A. de C.V. v. Lizarraga, No.
5
Whether the Dresser-Rand Parties have a probable right to relief on their claims in the
Paris Proceedings involves a legal analysis of the probability that the Dresser-Rand Parties will
recover on their claims regarding the Adjustment and their indemnification claims.
6
A Spanish attorney currently serving as Centauro Capital’s “Legal Director,” testified
that all of Centauro Capital’s business is conducted from offices located in Spain and that, in
14
14-13-00933-CV, 2014 WL 3512858, at *2–3 (Tex. App.—Houston [14th Dist.]
July 15, 2014, no pet.) (mem. op.); Lamar v. Poncon, 305 S.W.3d 130, 138 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied).
The Dresser-Rand Parties assert that specific jurisdiction can be based on the
following alleged purposeful contacts of the Centauro Parties with Texas: (1) the
Centauro Parties allegedly participated in prolonged and deliberate contract
negotiations with Texas-based Dresser-Rand, including two visits by Centauro
Capital representatives, including Grajales, to Houston; (2) the Centauro Parties
allegedly requested and received due-diligence information directly from Dresser-
Rand in Texas; and (3) the Centauro Parties allegedly provided due diligence and
other information and materials to be reviewed by and discussed with Dresser-
Rand in Texas. The Dresser-Rand Parties also argue that, as a result of alleged
contacts with Texas, Centauro received more than 3.2 million shares of Texas-
based Dresser-Rand Group stock, and Grajales was appointed and served as a
compensated Advisory Director to Dresser-Rand’s board of directors, participating
in person and by telephone in multiple board meetings in Texas, and signing a
confidentiality agreement governed by Texas law. Presuming, without deciding,
that the Centauro Parties had the foregoing purposeful contacts with Texas, there
still would be no substantial connection between either of the Centauro Parties’
purposeful contacts with Texas and the operative facts of this litigation. See Moki
Mac River Expeditions, 221 S.W.3d at 585; Transportes de Zima Real S.A. de C.V.,
2014 WL 3512858, at *2–3; Lamar, 305 S.W.3d at 138.
February 2013, he emailed Dresser-Rand’s general counsel asking, among other things, what
steps Centauro Capital should take if it wanted the restrictive legend on Centauro Capital’s
Dresser-Rand stock removed. After an exchange of emails between these two lawyers, Dresser-
Rand issued instruction letters to the Massachusetts office of its transfer agent, asking that the
restrictive legend be removed. Less than two weeks later, the Dresser-Rand Parties filed the
Texas litigation.
15
In the absence of such a substantial connection, the trial court did not err in
granting the Centauro Parties’ special appearances. 7 See Moki Mac River
Expeditions, 221 S.W.3d at 585; Transportes de Zima Real S.A. de C.V., 2014 WL
3512858, at *2–3; Lamar, 305 S.W.3d at 138. Accordingly, we overrule the
Dresser-Rand Parties’ third and sixth issues. 8
IV. CONCLUSION
The operative facts of this litigation concern the steps allegedly taken by the
Centauro Parties in the past to begin to “dissipate” all of the Dresser-Rand stock
Centauro received as part of its Closing Consideration under the Agreement, as
well as steps that the Centauro Parties may take in the future to complete this
alleged dissipation. The special-appearance evidence shows that there is not a
substantial connection between either of the Centauro Parties’ alleged purposeful
contacts with Texas and the operative facts of this litigation. Absent such a
7
The Dresser-Rand Parties cite various personal-jurisdiction cases in support of their
assertion that the undisputed evidence shows that trial court may exercise personal jurisdiction
over the Centauro Parties based on specific jurisdiction, but each of these cases involves facts
materially different from those in the case under review.
8
In their live pleading, the Dresser-Rand Parties assert that, under the ICC Rules of
Arbitration parties to an ICC arbitration may apply to any competent judicial authority for
“interim or conservatory measures,” despite the party’s arbitration agreement. Presuming that
this is so, under the Agreement, in any action or proceeding between any of the parties arising
out of or relating to the Agreement, to the extent the action or proceeding is not subject to the
arbitration provision, the parties submit non-exclusively to the jurisdiction of (a) Madrid, Spain,
if the action is commenced by Dresser-Rand or any of its affiliates, or (b) Houston, Texas, if the
action is commenced by the Sellers or the Seller Representative. Because the Texas lawsuit was
commenced by the Dresser-Rand Parties, the only possible consent to the jurisdiction that might
apply under the Agreement is to the jurisdiction of Madrid, Spain. The parties could have made
different arrangements regarding consent or submission to jurisdiction in court proceedings
relating to the Agreement, but they did not do so. Because the Centauro Parties have not
consented to jurisdiction in Texas as to the case under review or otherwise waived their personal-
jurisdiction challenges, this court must determine whether the trial court erred in granting the
Centauro Parties’ special appearances and in concluding that the exercise of personal jurisdiction
over the Centauro Parties would violate federal due-process guarantees.
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substantial connection, the trial court did not err in granting the Centauro Parties’
special appearances. 9
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
9
In their first issues, the Dresser-Rand Parties assert that the Centauro Parties are within
the scope of the Texas long-arm statute. In their second, fourth, and eighth issues, the Dresser-
Rand Parties challenge the legal and factual sufficiency of certain fact findings of the trial court.
But, even if these findings were set aside, that ruling would not affect this court’s analysis above.
In their fifth issues, the Dresser-Rand Parties assert that the fiduciary-shield doctrine does not
preclude the exercise of specific jurisdiction over Grajales. In their seventh issue, the Dresser-
Rand Parties assert that the Centauro Parties did not show that the exercise of personal
jurisdiction over them does not comport with traditional notions of fair play and substantial
justice. Based on our analysis and disposition of the third and sixth issues, we need not and do
not address these other issues.
17